10 Example: Love v. WolfAfter Parke-Davis “started to use this stuff all over the country came reports of people dying from it, people suffering from aplastic anemia and dying.”Chloromycetin should never have been on the market and that “what I have talked about now so far is evidence of absolute flagrant, wanton, negligence of failure to have any regard at all for humanity and the safety of people using this stuff.”“And all this time they knew that what it [chloromycetin] caused was nothing-it was only death. That is what it was causing, death.”Unfounded allegations that Parke-Davis had bribed the FDA to get approvalLove v. Wolf (1964) 226 Cal.App.2d 378,Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

11 The price of crossing the line:“Misconduct of plaintiff's trial counsel, egregious beyond any in our experience or that related in any reported case brought to our attention has resulted in an unfair trial, a miscarriage of justice and requires us to reverse the judgment.”Love v. Wolf (1964) 226 Cal.App.2d 378, 382.Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

14 Challenges to Legal SufficiencyNonsuit: Challenge to plaintiff’s caseM. for Directed Verdict: Challenge to defendant’s caseStandard: “[I]t is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the case may be.”Bias v. Reed (1914) 169 Cal. 33, 37.Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●

15 Curing Legal InsufficiencyCounsel normally permitted to reopen statement and cure defects:Reasonable opportunity should be given to set up a cause of action if there is one.Permission to enlarge opening statement primarily in discretion of trial courtDiscretion to be exercised liberally so plaintiff with a cause of action can present it to jury even when counsel initially failed to state in detail necessary facts proposed to proven.Rodin v. Amer. Can Co. (1955) 133 Cal.App.2d 524, 534.Cynthia McGuinn ● Miles Cooper ● Daniel Pleasant ● Rouda, Feder, Tietjen & McGuinn ● ●